Citation Nr: 0613929
Decision Date: 05/12/06 Archive Date: 05/25/06
DOCKET NO. 04-23 179 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for type I diabetes
mellitus, also claimed as secondary to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1970 to
September 1971.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a July 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon, which denied the benefit sought on appeal. In March
2004, the veteran testified at a personal hearing held before
the RO.
FINDING OF FACT
The competent medical evidence does not demonstrate that the
veteran's current type I diabetes mellitus is related to his
service.
CONCLUSION OF LAW
Service connection for type I diabetes mellitus is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. 3.303,
3.304, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in December 2000 and
September 2002, and a rating decision July 2002. These
documents discussed specific evidence, the particular legal
requirements applicable to the claim, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, No. 05-7157, __ F.3d __,
2006 WL 861143 (Fed. Cir. Apr. 5, 2006) (specifically
declining to address harmless error doctrine); see also
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has
satisfied its duty to notify the appellant and had satisfied
that duty prior to the adjudication in the April 2004
statement of the case.
In addition, VA has obtained all relevant, identified, and
available evidence and has notified the appellant of any
evidence that could not be obtained. VA has also obtained
medical examinations in relation to this claim. In the
substantive appeal, the appellant noted his intent to obtain
a medical evaluation and opinion from a private physician
establishing service connection between diabetes and a tour
of duty in Vietnam. However, no such medical report has been
provided. Thus, the Board finds that VA has satisfied both
the notice and duty to assist provisions of the law.
Turning to the relevant law, a claimant with active service
may be granted service connection for disease or disability
either incurred in or aggravated by active military service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.
Certain chronic diseases, like diabetes mellitus, may be
presumed to have been incurred during service if they become
disabling to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309.
The Board notes that a veteran who served in the Republic of
Vietnam during the Vietnam era is presumed to have been
exposed to certain herbicide agents (e.g. Agent Orange),
absent affirmative evidence to the contrary. 38 U.S.C.A. §
1116 (a) (West 2002); 38 C.F.R. §§ 3.307 (a)(6)(iii)(2005).
Service connection based on herbicide exposure will be
presumed for type II diabetes mellitus that becomes manifest
to a compensable degree at any time after service. As an
initial matter, in the substantive appeal the veteran
contends that he has type II diabetes mellitus. However,
there are no service medical records or post-service medical
records that provide a type II diabetes diagnosis. Therefore
the presumption of service connection based on exposure to
herbicide agents does not apply.
The disease entity for which service connection is sought
must be "chronic" as opposed to merely "acute and transitory"
in nature. For the showing of chronic disease in service,
there is required a combination of manifestations sufficient
to identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. Where the fact of chronicity in
service is not adequately supported then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998)
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet.App.143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for type I diabetes
mellitus on a direct or presumptive basis. 38 C.F.R.
§§ 3.303, 3.304, 3.307, 3.309.
The veteran's Navy service medical records from April 1969 to
August 1971 are void of any complaints, symptoms, findings,
or diagnosis attributed to type I diabetes mellitus.
During a November 2001 VA examination, the veteran described
a history of diabetes mellitus dating back to 1989 which was
the last time the veteran received treatment for the
condition. Upon examination, the VA examiner diagnosed the
veteran's condition as diabetes mellitus. A second VA
examination was held March 2002 after which the VA examiner
diagnosed the veteran as having type I diabetes mellitus.
In this regard, the Board notes that in the Statement of
Accredited Representation, the veteran's representative
questions the fairness of the VA compensation exam, as well
as the VA examiner's medical analysis of the claim. However,
review of both the November 2001 and March 2002 examinations
reveals that all subjective and objective findings necessary
for evaluation of the veteran's disability were observed and
recorded, and thus both examinations appear complete and
adequate.
The veteran's post-service medical records are negative for
any evidence of type I diabetes mellitus within one year of
separation from active duty. In fact, the post-service
medical records are negative for diabetes mellitus until
almost twenty years after separation. The United States
Court of Appeals for the Federal Circuit has determined that
a significant lapse in time between service and post-service
medical treatment may be considered as part of the analysis
of a service connection claim. Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000). Further, while the competent medical
evidence does show that the veteran now suffers from type I
diabetes mellitus, it does not include any competent medical
opinion linking the condition to the veteran's active duty.
In the absence of competent medical evidence linking current
type I diabetes mellitus to service, service connection must
be denied.
The Board recognizes the veteran's own contention as to the
diagnosis and relationship between his service and the
claimed disease. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. See Falzone v. Brown, 8 Vet. App.
398, 405 (1995). As a layperson, however, the veteran is not
competent to provide an opinion requiring medical knowledge,
such as a diagnosis, or an opinion relating to medical
causation and etiology that requires a clinical examination
by a medical professional. Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992). As a result, his own assertions do not
constitute competent medical evidence that his type I
diabetes mellitus began during, or is a result of, his
service or that he has now developed type II diabetes
mellitus.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim. The evidence does
not show that any current type I diabetes mellitus was
incurred in or aggravated by service or that any diabetes
mellitus manifested to a compensable degree within one year
following the veteran's separation from service.
Furthermore, the competent medical evidence does not show
that the veteran has been diagnosed with type II diabetes
mellitus that can be presumed to be the result of exposure to
herbicides. Therefore, service connection for type I
diabetes mellitus, also claimed as secondary to Agent Orange
exposure, is denied.
ORDER
Service connection for type I diabetes mellitus is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs